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Branch v. United Parcel Service

United States District Court, D. Colorado

July 22, 2019

LARRY BRANCH, Plaintiff,
v.
UNITED PARCEL SERVICE, Defendant.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX MAGISTRATE JUDGE.

         This matter is before the Court on Defendant's Motion to Dismiss Portions of Amended Complaint [#11][1] (the “Motion”). Plaintiff, who proceeds in this matter pro se, [2]filed a Response [#19] in opposition to the Motion, Defendant filed a Reply [#20], and Plaintiff filed a Surreply [#21].[3] Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motion [#11] has been referred to the undersigned for recommendation. See [#17]. The Court has reviewed the Motion, Response, Reply, Surreply, the entire case file, and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#11] be GRANTED in part and DENIED in part.

         I. Background [4]

         At the outset, the Court notes that the factual allegations in Plaintiff's Amended Complaint [#7] are sparse. Plaintiff is a former employee of Defendant United Parcel Service (“UPS”). Am. Compl. [#7] at 8. Plaintiff worked as a driver throughout the course of his employment with Defendant. Id. at 9. The conditions of Plaintiff's employment and subsequent termination form the basis of his claims.

         While employed by Defendant, Plaintiff alleges that on September 21, 2011, he was the “victim of an assault while on the job that was swept under the rug.”[5] Id. at 6. Plaintiff alleges that because of the assault, his “health and mental status to [sic] a serious dive within six months of accident [sic].” Id. at 12. Following this, Plaintiff avers that he was confronted with “constant retaliation” from a month after the assault until November 28, 2018. Id. at 6.

         In the wake of the alleged assault, Plaintiff alleges that he contacted several members of management personnel at UPS. Id. at 14. However, Plaintiff avers that their investigations into the incident were “bogus” and that “[t]heir agenda was to try to exhaust his time to file a claim.” Id.

         Plaintiff also alleges that his rights under the Americans with Disabilities Act (“ADA”) were violated when Defendant assigned him a natural gas tractor, which he alleges violated a doctor's order. Id. Plaintiff avers that Defendant “constantly tried to place him in combative scenarios” as a way to trigger his PTSD. Id. at 9. Finally, Plaintiff alleges that his “lung and skin disabilities” were “ignored and at times disciplined for.” Id. at 10.

         In June 2017, Plaintiff was approved for a “no shave profile, ” in order to conceal a “highly inflamatory [sic] skin condition.” Id. at 7. As a result of this accommodation, Plaintiff avers that he was “discriminated against, harassed[, ] and humiliated” and that “the harassment reached its peak” during this time. Id. Plaintiff alleges that Defendant's management sought to terminate him by attempting to goad him into anger with “belligerent” remarks. Id.

         The circumstances of Plaintiff's progress through the grievance process are far from clear. Plaintiff avers that retaliation against him “intensified” as Defendant received his “[first] formal complaint in May of 2017.” Id. at 6. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on June 20, 2017. See id. at 13; Compl. [#1] at 18.[6] Plaintiff alleges that he was terminated shortly after his thirty-year anniversary of working for Defendant. Am. Compl. [#7] at 7.[7]

         Plaintiff filed this lawsuit on December 31, 2018, see Compl. [#1], and filed an Amended Complaint [#7] on February 14, 2019. Plaintiff asserts he was subjected to an assault and unlawful employment practices in violation of Title VII of the 1964 Civil Rights Act and the ADA. See generally Am. Compl. [#7] at 2. As relief, Plaintiff asks the Court to: (1) “[h]old U.P.S. criminally liable”; (2) “[k]eep [his] employment whole”; and (3) “[a]ward [his] family [and himself] punitive damages that exceed for [sic] the harm, distress, and damage that [Defendant] has caused.” Am. Compl. [#7] at 15. Plaintiff seeks a total of twenty million dollars in damages. Id. at 2. In the present Motion [#11], Defendant seeks to dismiss these claims to the extent that they are time-barred and legally deficient pursuant to Fed.R.Civ.P. 12(b)(6). Motion [#11] at 6; Reply [#20] at 2-3.

         II. Legal Standard

         Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support plaintiff's allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).

         Similarly, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[a] pleading that offers ‘labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). That said, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests;” the 12(b)(6) standard does not “require that the complaint include all facts necessary to carry the plaintiff's burden.” Khalik, 671 F.3d at 1192 (citation omitted).

         Further, “[t]he plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully.” Iqbal, 566 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (citation omitted).

         To determine if a complaint survives a motion to dismiss, courts utilize Rule 8, instructing that “[a] plaintiff must provide a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Tuttamore v. Lappin, 429 Fed.Appx. 687, 689 (10th Cir. 2011) (quoting Fed.R.Civ.P. 8(a)(2)). As with Rule 12(b)(6), “to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible.” Id. Indeed, “Rule 8(a)'s mandate . . . has been incorporated into the 12(b)(6) inquiry.” United States ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir. 2010). Rule 8 enables “the court and the defendants to know what claims are being asserted and to determine how to respond to those claims.” Tuttamore, 429 Fed.Appx. at 689.

         III. Analysis

         Liberally construing the Amended Complaint, Plaintiff seeks to bring claims against Defendant for: (1) the alleged assault in 2011, (2) “constant retaliation” from October 11, 2011, until November 28, 2018, and (3) alleged discrimination on the basis of a disability. See Am. Compl. [#7] at 5-10. Further, Plaintiff asserts that Defendant's employees had an “agenda” to “try and exhaust [his] time to file a claim.” Am. Compl. [#7] at 14. In the present Motion, Defendant raises two defenses: (1) any claim under Title VII or the ADA stemming from events that occurred prior to August 24, 2016, is barred by the statute of limitations, and (2) any assault claim is barred by the applicable Colorado statute of limitations. Motion [#11] at 8.[8] Additionally, Defendant argues that Plaintiff's retaliation claim is ...


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